Messages to States from the Department of Health and Human Services
In a 55-43 vote, in the Senate Monday March 13, Seema Verma was confirmed to be the Administrator of the Centers for Medicare and Medicaid Services (CMS). After her swearing in on March 14, Health and Human Services Secretary (HHS) Tom Price, M.D. and Ms. Verma took their first joint action by cosigning a letter to the nation’s governors committing to work with states to improve the Medicaid program. The letter commits their support for state initiatives aimed at improving health outcomes, and pledge to ensure long-term sustainability of the program. The letter outlines key areas where efforts will be made to improve collaboration with the states including:
- Engaging with states in a bilateral process to facilitate expedited approval of waiver and demonstration project extensions.
- Reaffirming the agency’s commitment to support and complement program with demonstrated success. The letter declares their intent to use existing Section 1115 demonstration authority to review and approve innovations with training, employment and independence.
- The letter encourages states to consider creating greater alignment between Medicaid’s design and benefit structure with common features of commercial health insurance.
- CMS will work toward providing additional time for states to comply with the Jan. 16, 2014, Home and Community-Based Services (HCBS) rule. These rules have been of some concern to many states in that the requirements may jeopardize the availability of care for beneficiaries in rural areas, or alter arrangements for beneficiaries that have produced successful outcomes. The regulations were meant to be fully implemented by March 17, 2019. Click here for Additional Resources on the Program
- Tools to Address the Opioid Epidemic–The letter expresses a commitment to ensure that states have the tools they need to combat the growing opioid epidemic. CMS will continue to work with states to improve care under the Medicaid state plan and through the Medicaid Innovation Accelerator Program. In addition, CMS will strive to develop a more streamlined approach for the Section 1115 substance abuse treatment demonstration opportunities.
HHS Urges State Legislators to Apply for Section 1332 Waivers for Health Insurance Market Stabilization
HHS, in partnership with the Department of the Treasury, announced a new opportunity for states in a letter to the governors. Section 1332 of the Affordable Care Act (ACA), which is not impacted by the American Health Care Act, permits states to apply for a State Innovation Waivers to pursue new strategies for improving access to high quality and affordable health coverage.
The Consumer Information and Insurance Oversight (CCIIO) is currently endeavoring to expedite these applications and encouraging states to apply for these funds for use in supporting healthy state health insurance markets.
To receive approval, a state must demonstrate through a proposal submitted to the CCIIO that the waiver will enable the state to provide their residents access to health care coverage that is as comprehensive as they would find without the waiver in place, would impact some comparable numbers of individuals that were insured before the waiver, and the waiver would not increase the federal deficit. In addition, before submitting a Section 1332 waiver application:
- a state must provide for a public notice and comment period, including public hearings to receive a sufficient level of public input, and
- enact a law providing for the implementation of the waiver prior to the end of the 2017 legislative session.
States may receive pass-through funding associated with the resulting reductions in federal spending on marketplace financial assistance. The funding will be determined by HHS and based on the percentage of reductions realized by the waivers implementation and impact on the state health insurance market.
Letter to Governors
Executive Order Pledges Repeal Efforts and State Flexibility
President Donald Trump issued an executive order (EO) on Jan. 20, 2017, declaring that it is the policy of his administration to seek a prompt repeal of the Patient Protection and Affordable Care Act (ACA).
Pending the repeal, the administration will ensure that the provisions of the law are being efficiently managed and take every action consistent with the law to minimize the economic and regulatory burdens of the ACA. The EO serves as a pledge of the administration to afford states more flexibility and control to create a freer and open healthcare market.
In addition, the administration commits to using its executive departmental authorities through the Department of Health and Human Services (HHS) and other executive departments agencies with authorities and responsibilities under the ACA, to exercise all authority and discretion to:
- Waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the act that would impose a fiscal burden on the states, patients, consumers, health providers and other health system stakeholders.
- Maximize to the extent possible flexibility to states and cooperate with them in implementing healthcare programs.
- Encourage to the extent permitted by law, the development of a free and open market in the interstate commerce for the offering of healthcare services and health insurance to maximize options for patients and consumers.
Other Regulatory Actions by the Administration
White House Chief of Staff Reince Priebus announced in a memorandum Jan. 20, 2017, the Trump Administration’s plans for managing the federal regulatory process. The memorandum freezes new government regulation, following precedent set by previous administrations. Setting the 1996 Congressional Review Act as the authority to challenge rules published late during the Obama Administration, the Trump Administration hopes to delay the rules that are pending or haven’t been published until they’ve had an opportunity to review them and consider their own policy priorities.
The Congressional Review Act (CRA) created fast-track procedures for Congress to enact a joint resolution of disapproval that can nullify an agency’s rule. The resolution must be introduced within 60 days of Congress first receiving the rule. This means the Senate can write resolutions of disapproval for rules finalized between June 13, 2016, and Jan. 19. 2017. The first day to introduce a valid CRA resolution on a rule finalized in the 114th Congress was Jan. 30, 2017.
The Health and Human Services (HHS) final rules this may impact include but are not limited to the following:
- Confidentiality of Substance Use Disorder Patient Records,
- Medicaid Program: Use of New or Increased Pass-Through Payments in Medicaid Managed Care Delivery Systems,
- 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties,
- Patient Protection and Affordable Care Act: Benefit and Payment Parameters for 2018; Amendments to Special Enrollment Periods and the Consumer Operated and Oriented Plan Program,
- Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs,
- Runaway and Homeless Youth,
- Enhancing Retailer Standards in the Supplemental Nutrition Assistance Program (SNAP),
- Medicaid and Children’s Health Insurance Programs: Fair Hearing and Appeal Processes for Medicaid and Other Provisions Related to Eligibility and Enrollment for Medicaid and Children’s Health Insurance Program,
- Medicare and Medicaid Programs: Reform of Requirements for Long-Term Care Facilities,
- Child Care and Development Fund Program,
- Medication Assisted Treatment for Opioid Use Disorders Reporting Requirements,
- Medicare and Medicaid Programs: Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers,
- Administrative Reviews in the School Nutrition Programs, and
- National School Lunch Program and School Breakfast Program: Nutrition Standards for All Foods Sold in Schools Required by the Health, Hunger-Free Kids Act.
Executive Order (EO) Capping Regulatory Action in 2017
On Jan. 30, 2017, President Trump issued an EO outlining his intent to manage the direct expenditure through controlling the costs associated with compliance with governmental requirements with federal regulations. The EO requires any executive department or agency proposing for notice and comments or otherwise promulgates a new regulation to identify at least two existing regulations to be repealed. For fiscal year (FY) 2017, agency directors must hold incremental costs for all new regulations, including the repealed regulations finalized during this period at budget neutral unless otherwise required by law or on advisement of the Director of the Office of Management and Budget (OMB).
All costs for new regulations must also be offset by elimination of existing costs associated with at least two prior regulations, in accordance with applicable law. The Director of OMB will provide guidance on the implementation of the EO to the heads of departments that will address:
- Standardizing the measurement and estimation of regulatory costs, and for determining what qualifies as new and offsetting regulations,
- Standards for determining the costs of existing regulations that are considered for elimination,
- Processes for accounting for costs in different fiscal years,
- Methods to oversee the issuance of rules with costs offset by savings at different times or different agencies, and emergencies and other circumstances that might justify individual waivers of the requirements of this section.
Annual Regulatory Cost Submissions & Approval by OMB
In FY 2018, and for each fiscal year thereafter, the head of each agency will be required to identify incremental costs for each regulation, and provider the agency’s best approximation of the total costs or savings of each new or repealed regulation. Unless otherwise required by law, no regulation will be issued by an agency if it was not included on the most recent version or update of the published Unified Regulatory Agenda, unless the issuance of the regulation was approved in advance in writing by OMB.
The Director of OMB will identify the total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations for the next fiscal year as part of the President’s budget process. No regulations exceeding the agency's these limits will be permitted in that fiscal year, unless required by law or approved by OMB.
This application of the rule does not include:
- regulations issued with respect to a military, national security, or foreign affairs function of the United States,
- regulations related to agency organization, management, or personnel, or
- any other category of regulations exempted by OMB.